2004-190NO.
AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE A WIRELINE CROSSING AGREEMENT WITH UNION PACIFIC
RAILROAD COMPANY FOR AN AERIAL WIRELINE CROSSING LOCATED AT
MILE POST 718.38, CHOCTAW SUBDIVISION, CITY OF DENTON, DENTON
COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR;
AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager or kis designee is hereby authorized to execute a
wireline crossing agreement with Union Pacific Railroad Company for an aerial electric
wireline at milepost 718.38, Choctaw Subdivision, City of Denton, Denton County,
Texas, which is attached hereto and incorporated by reference herein (the "Agreement").
SECTION 2. The expenditure of funds as provided in the Agreement is hereby
authorized.
SECTION 3. This ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APPROVED this the ~q~ ~L'~ day of ~ , 2004.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
PL X 940206
Form Approved, AVP-Law
VffIRELINECROSSING
AGREEMENT
Folder No: 2256-33
Mile Post: 718.38, Choctaw Subdivision
Location: Denton, Denton County, Texas
THIS AGREEMENT is made and entered into as of February 7, 2000,: by ~md between UNION
..... ,PARC RAILROAD COMPANY, a Delaware qgrpgratiqI~.'..(he~i~'..~he "Licensor'!), and
' "' :' ' 'D~NTo~, mY OF, a Texas municipal corporation, wh6s~ address is.60'l ~:.HICKORY ST., #B,
Denton, T~xas. 76201 (hereinafter the "Licensee").
IT IS MUTUALLY AGREED BY AND BETWEEN THE PAR'lIES HERETO AS
· Article I. LICENSE FEE · . :. ~ ;
.... Upon'execution of this Agreement, the Licensee ~hall pay to the-Licen.s, or:a.0nert~ne li~en, se fee
of TWO THOUSAND DOLLARS ($2,000.00). ~ , .: ~ '
Article II. LIcENsoR GRANTS RIGHT.
In consideration of the License Fee to be paid by the Licensee and in further consideration of the
covenants and agreements herein contained to be by the Licensee kept, observed and perfmaned, the
Licensor hereby grants to the Licensee the fight to construct and thereafter, during the. term hereof, to
maintain and operate only a
Wireline crossing (hereinafter the "Pipeline")
' in the location shown and in conformity with the dimensions and specifications indicated on the attached
print dated February 4, 2000, marked Exhibit A. Under no eirc~ees shall Licensee modify the use
of the Wirelinefor a purpose other than the above-mentioned, and said Wirelineshall not be used for any
other use, whether such use is currently technologically possible, or whether such use may come into
existence during the life of this Agreement.
Article HI. CONSTRUCTION, MAINTENANCE AND OPERATION.
The grant of tight herein made to the Licensee is subject to each and all of the terms, provisions,
conditions, limitations and.covenants set forth herein and in Exhibit B, hereto attached.
Article IV. IF WORK IS TO BE PERFORMED BY CONTRACTOR.
If a contractor is to do any of the work performed on the Wireline(including initial construction
and subsequent relocation or substantial maintenance and repair work), then thc Licensee shall require its
contractor to execute the Raiiroad's form Contractor's Right of Entry Agreement. Licensee acknowledges
receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions,
and requirements, and will inform its contractor of the need to execute the Agreement. Under no
circumstances will Licensee's contractor be allowed onto Licensor's premises without first executing the
Contractor's Right of Entry Agreement.
ArticleV. TERM.
This Agreement shall take effect as of the date first herein written and shall contlpue in full force
and effect until terminated as herei~ provided. ·..".. . ': ... .' .:.
Article VI. SPECIAL PROVISIONS -= NONE
Article VII. AMENDiVIENT OF E~ m ~[T B ..:. . ''
'Sebfi0ns 7 Co) and i0 of Exhibit B hereto attached are hereby amended lo. read as ~ollows:
S~ction 7CO) in addition t0 0ther indemnity, provisions in thiS'agreement, the. License~ shall.~ ~
indemnify and bold harmless the Licenser from and against all costs, l~abitity and eXpense:whatsoever
(including, without limitation, attorney's fees, court costs and expenses) arising out of anY aqt or
omission ' ·
of the Licensee, agents and/or employees, that causes or contributes to (1.) any damage to
or destruction of any telecommunications system on Licensor's property, and (2) any injury to or death of
any person employed by or on behalf of any teleeommunicatiens company and/or its eentractor, agents
and/or employees, on Licensor's property. Licensee shall not have or seek recourse against Licensor for
any claim or cause of action by alleged loss of profits or revenue or loss of service or other consequential
damage to a telecommunication company using Licensor's property or a customer or user of services of
thaflber optic cable on Licensor's property.
Section 10 IIfDEMNITY
As used in this Section, "Licensor" includes other railroad companies using the Licensor's
property at or near the location of the Licensee's installation and their officers, agent and employees,
"Loss" includes loss, damage, claims, demands, actions, eanses of action, penalties, costs and expenses
of whatsoever nature, including court ansts and attorney's fees which may result from; (a) injury to or
deathofperanns whomsoever (including the Licensor's offiee~:s, agents and employees, the Licensee's
officers, agents and employees, as well as any other person); and Co) damage to or loss or destruction of
prope~y whatsoever (including Licensee's property, damage to the roadbed, traaks, equipment, or other
property of the Licensor, or property in its care or custody).
As a major inducement and in consideration of the license and pemfission herc~n granted~ the
Licensee a~rees, to the extent permitted by law, to indemn{fy and hold harmless the Licansor from any
Loss which is due to or arises from:
1. The prosecution o£ any work contemplated by this Agreement including the installation,
construction, maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the
Wirelincor any part thereof, or
2. Tho presence, operation or use of the Wirelineor contents escaping therefrom, except to
the extent that the Loss is caused by the sole and direct negligcncc of the Licensor.
IN W1TNESS WHEREOF, thc parties hereto have causcd this Agreement to be executed'as of
the date first herein written~
' uNION PACIFIC RAILROAD COiVIPANY
By:
Manager Contracts - Real Estato..
APPROVED AS TO FORM:
CITY AI-I'ORNF~Y
BY: -
EXHIBIT "A"
OIRECTION REI. A¥1VE TO CRO~I~ / ' ~,u~,o~
'~ ,~' ~ OVERHEAD WI. RgLIN~ CROSSING
(~ /7.. OVER 7,0VOLTS
~ ~.,~// NOTE~ ALL AVAILABLE DIMENSIONS MUST ~E
¢'~/ NO ~CALE F[LLED IN TO EXPEDITE mis APPLICATION.
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~) ~Xl~ QSO~ CU~AE~ AY rKlP ~S, AT ~0t A~ UNION PACIFIC RAILROAD CO.
c~.cum o,~ v~T[oe ~s~ w~Ks ~o~ ~e,~A~ sT.~. OVERHEAD WIRBLINE CROSS[NC
WLXEXB 980112
Form App rovex[, AVP-Law
EXI-ffBIT B
Section i. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED.
(a) The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor
to use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use,
operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or other wirellnes, pipelines and other
[acllllles upon, along or across any or all parts of its properly, all or any of which may be freely done at any time or times by
the Licensor without liability to the Licensee or to any other party for compensation or damages.
(b) The for.egoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees
of the Licenser's property, and others) and the right bf the Licensor to renew and extend the ~ame, and is made without
covenant al tlile or for quiet enioyment.
Section 2. CONSTRUCTION, MAINTENANCE AND OPEP, ATION.' .....
(a) I~ the W/reline or any port thereof is to be loc&ted above the top of the rails of any track or communicat on and signal
Ih'xes, including static wires, overhead clearance prOVt~led by the Wireline shall be no less than that shown on Exhibit A. The
Wlreline sh,all be constructed, operated, maintained, .repaired, renewed, modified and/or reconstructed by the Licensee in
strict conform fy.with.the- Specifications pr. escribed in the carren i~sue of.the National Electrical. Sa:Mty;Code al the Amer can
National Standards Institute.. In the.evefit such Specifications conflict in ahy respect with the/~equ/rements, al any"fedei-al, state
or municipal law..:or regulation, such requirements shall ,govern on all points of conf[ict, rbut. iri..all other 'respects the
Specifications shall apply. ' " ' ' ' ' ·
(b) All work perfo~'med on property"of.ll/e Licen~)r in connection wit~ the construction, maintenance, repair,' r~qewai,
modification or reconstruction of ih~ Wire3ine shall be done to/he sat sfaci on of the Licensor · · .
(c) IJ the Wtrgline is an existing one' not &0hformir/g in' its 'construction tS': the abo{,~ pr~vlsions of' this Section 2, the
Licensee'shall, within ninety (90) days alter~ the date hereof, reconstruct it so as to conform therewith.
(d) The Wirellne shall be constructed, maintained and operated by the Licensee in such manner as not to be or constitute
a hazard to aviation. With respect to the Wtreline the Licensee, without expense to the Licensor, will comply with all
requirements al law crud of public authority, whether federal, state or local, including but not limtied to aviation authorities.
(e) In the operation of the Wireline, the Licensee shall not transmit electric current at a difference al potential in excess al
the voltage indicated on Exhibit A. If the voltage indicated is in excess of seven hundred fifty (750) volts, and the Wireline is, or
is to be, buried at cray locatlon on the property of the Licensor outside track ballast sections or roadbed, the Licensee shall
install metallic conduit, or non-metallic conduit encased in a minimum of three (3) inches of concrete w/th a mtnirnum al four
(4) feet of ground cover the entire length of the Wirefine on the property of the Licensor. A Wtreline buried by removal of the
soil. shall have, at a depth of one (l) foot beneath the surface al the ground directly above the Wireline, a six (6) inch wide
warning tape bearing the warning, "Danger-High Voltage," or equivalent wording. A W/reline encased in conduit, jacked or
bored under the property of the Licensor, must be identified by placing warning signs, to be installed and properly maintained
at the expense of the Licensee, at each edge of the Licensor's property. The Licensee shall not utilize the sign~ in lieu of the
warning tape where portions of the casing are installed by direct burial.
Seciion 3. NOTICE OF COMMENCEMENT OF WORK.
I.[ on emergency should arise r~quiring immediate attention, the Licensee shall provide as much notice as practicable
to Licensor before commencing any work. In all other situations, the Licensee shall notify the Licensor at least:ten (10) days (or
such other time as the Licensor may allow) in advance of the commencement of any work upon property Of the Licensor in
connection with the construction, maintenance, repair, renewal, modification reconstruction, relocation or removal of the
Wirellne. All such work shall be prosecuted diligently ia completion.
wlx. cxb Page I of 4
· Exhibit B
WLX.EXB 980112
Fon'n Approved. AVP-Law
Section 4. LICENSEE TO BEAR ENTIRE EXPENSE.
The Licensee shall bear the entire cost crud expense incurred in connection with the construction, maintenance, repair
and renewal and cmy and cdl modification, rev/sion, relocation, removal or reconstruction of the Wireline, including any and all
expense which may be incurred by the Licensor in connection therewith for supervision or inspection, or otherwise.
Section 5. REINFORCEMENT, RELOCATION OR REMOVAL OF WIRELINE.
(a) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad and
in the improvement and use of its property, and the Licensee shall, at the sole expense of the Licensee, reinforce or encase the
Wireline (if it is an underground facility) to the sallsfacllon of the Licensor, or move all or any' portion of the Wlreline to such
new locaiion, as the Licensor may designate, whenever in the furtherance of its needs and requirements, the Licens0~ shall
find such action necesscrry or desirable,
(b) All the terms, conditions and stipulations herein expressed with reference to the Wireline on property of the Licensor
in the locailon hereinbefore described shall, so for as the Wire ne remains on the property, apply to the Wireline as modified,
changed or relocated within the contemplation of this section.'.
Section 6. INTk:HFERENCE.
In the operation and mc~ntenaprce .of. the Wir, eline the Licensee shall t~:e all suitable precaution to .preyent, any,
interferenqe (by induction, lecrk~g~igf plectricity, 9r. othe,,rwise) with the operation .of the signal, .communication lines ar.othei~.
instcdlctiions or facilities of thp I~.censgr,or of its tenon!s; abd if, at any time, the, operaiinn or maihtenc.m, ce of the Wireline
results in any electrostatic effecfs which the Licensor de,ms undesirable or hdrmful,'or causes interference witk tho operation-
of the signal, communication line~ or other instatlat/qgs or facilities, as now existing or which may hereafter be provided by tho
LicensoF cind/or it~ tencmts,~the Licensee shall,.at'the :~0le expense of the Licensee~ immediately take such action as may be
.necessarytoe~minatesuch!nterfer~nce." . ..
Seatiqn 7. PROTECTION OF IefBER.OPTIC CABLE SYSTEMS..' · .', · ' ' ~ ·" t
· (a) Fil~er optic.cable systems may be buried 6n the L~censor's property. Pr6teclion of .the fiber optic cable systems is' of
extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and
proftis. Licensee shall telephone the Licensor at 1-800-336-9193 (a 24-hour number) to deterrnine if fiber opt/c cable is buried
anywhere on the Licensor's premises to be used by the Licensee. If it is, Licensee wilt telephone the telecommunic~ions
company(ies) involved, arromge for a cable locater, make arrangements for relocation or other protection of the fiber optic
cable, all at Licensee's expense, and will commence no work on the right of way until ail such protection or reincaiion has
been c~ccomplished. Licensee shcr3] indemnify and hold the Licensor harmless from and against all costs, liability and expense
whatsoever (including, without limitation, attorneys' fees, court costs and expensesl t:~rJ~lDg..out of or caused in any way by
Licensee's failure to comply with the provisions of this paragraph. 8~:1:: As~"[~j~ ,I.,' ~ ~ ..-, ,., .
harmless from and against ctll costs, liability and expense whatsoever (including, without limitation, c~tt~ts
and expenses) caused by the negligence of tho Licensee, its contractor, agents an~hing in (1) any dcnnage
to or destruction of any telecommunications system on Licensor's proper~~) any iniury to or death of any person
employed by or on behalf of cmy telecommunications com~_~ its contractar~remplayees, on Licensor's
property, except ff such cost~f the Licensor. Licensee
further agrees that l~s against Licensor for any claim or cause of action for alleged loss of
pr~ani~%~i~l;lmPany using Licensor's
S~:tion 8. CLAIMS AND LIElxlS FOR LABOR AND IvlAT~RTAL.
(a) The Licensee shall fully pay for all materials joined or affixed to and labor performed upat~property of the Licensor in
connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Wireline, and shall not
permit or suffer any mechcmlc's or materfcdmcm's lien ofany kind or naiure to be enforced against the property for any work
done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and
wlx.¢xb Page 2 of 4 Exhibit B
WLX.EXB 980112
Form Approved, AVP-Law
hold harmless the Licensor against and from any crud all liens, claims, demands, costs and expenses of whatsoever nature in
any way connected with or growing out of such work done, labor performed, er malerials furnished.
(b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, tn respect to, or on
account of the Wireline, to prewnt the same from becoming a charge or lien upon property of the Licensor, and so that the
taxes, charges and assessments lev~ed upon or in respect to such property shall not be increased because of the location,
construction or maintenance of the W/reline or any improvement, appliance or fixture connected therewith placed upon such
property, or on account of the Licensee's interest therein. Where such tax, charge or assessment may not be separately made
or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall pay
to the Licensor aT. equitable proportion of such taxes d. etermined by the value of the Licensee's property upon property of the
Licensor as compared with the entire value of such property.
Section 9. RESTORATION OF L~CENSOR'S PROPERTY.
fn the eveni the Licensor authorizes the Licensee to take down any' fence of the Licensor or in any manner move or
'disturb any' 'of' the other property Of the Licensor i~ connection with 'the consirecUon, maintenance, repair, renewal,
modification, reconstruction, relocation or removal of the VTireline, then in that event the Licensee shall, as soon as possible
and at Licensee's sole expense, restore such fence and other proper~y to.the same condition as the same were in before such
fence was taken down or such other property was moved or disturbed, and the Licensee shall indemnify and.bald harmless
the Licensor, ils officers, agents and employees, against and from any and all liability, loss, damages, penalties, claims,
demands, casls and expenses of Whatseever nature, including court costs and attorneys' fees, which may r~sult from injury to
or death of persons whomsoever`.'0r damage.to, ol~ loss or destruction of property whatsoever, when-such?injury, death,
damage, loss or destruction grows out Of or arises from the taking down of any' fence or. the-moving or disturbance of any other:
property of the Licensor. . : ' ·. . ' '
' ' · /II
10. INDEMNITY. ' 8~-- ~ ~7,~B~ . .
(~) Ar. uzcd in LM~ C~ti~,,, "L',~,,.,~,'I ,,,~l~d~,~ ~,',I .... ~2l,~d ~,;+,~,,; .... :,,~ ;1,~ L; .....
· location of the Licensee's installation and their officers,' agents, and employees; :"Losst' includes less, dama~..q~-'f[dirns,,
demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature, including court co~d attorneys
fees, which may result ir, om: (a) injury to or death of persons whomsoever (including the Licenso~ers, agents,
employees, the Licensee s officers, agents, and employe, es, as well as any other person); ~,~:~r (b)damage to or loss or
destruction of property whatsoever (including Licensees property, damage to the r_.~d, tracks, equipment, or other
property of the Licensor, or property in/ts care or 6ustody).
(b) As a major inducement and in consideration of the licens~F..~ra'd permission herein granted, the Licensee agrees to
indemnify and hold harmless the Licensor from any ~ue to or arises from:
1. The pr os ecuti~.?)o.n, construct ion,
maintenance, rep '~he Wireline or any part
thereof~
2~cted thereon or escaping
ere from,
"'
Section 11. RE'MOVAL OF WIRELINE UPON TERMINATION OF AG~E~. k, ~' ..J
Prior to the lerminatton of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove lhe
Wireline from the property of the Licensor and restore such property to as good a condition as it was in before the Wlreline
was originally constructed, all to the satisfaction of the Licensor. If the Ltoeesee fails to do the foregoing, the Licensor may
perform the work of removal and restoration at the expense of the Licensee. The Licensor shall not be liable to the Licensee
for c~ny damage sustained by the Licensee c~s c~ result of the removal of the Wireline by the Licensor as in this section provided,
nor shall such action prejudice or impcfir any right of action for damages or otherwise that the Licensor may, at the time of
'such removal, have against the Licensee.
~vlx.exb Page 3 of 4 Exhibit B
WLX.EXB 980112
Form Approved. AVP-Law
Section 12. WAIVER OF BREACH.
The waiver by the Licensor of the breach of cmy condffion, covenant or agreement herein contained to be kept,
observed and performed by the Licensee shcdl in no way impair the right of the Licensor to avail itself of any remedy for any
subeequent breach thereof.
Section 13. TERMINATION.
(a) If the Licensee does not use the right herein granted or the Wlreline for one (1) year, or if the Licensee continues in
default in the performance of any covenant or agreement herein contained for a period of thirty (30) days cUter written notice
from the Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith lmmediaiely terminate this
Agreement by written notice. ·
(b) In addition to the prov/sions of subparc~graph (a) above, this Agreement may be terminated by written notice given by
either party hereto to the other on any date in such notice stated, not less, how~ver,'than thirty (30) days subsequent to the date
upon which such notice shall be given. ' ' . : '. · ' ·
(c) Notice of defc~ult and notice of termination may be served per~ondily dpon the Licensee or by mailing to the last
known address of the Licensee. Termination of this Agreement for any reason shdll not affect any of the rights or obligatiofls of
the part/ec hereto which may have accrued, or l/ability, accrued or otherwise, :which'may have arisen prior thereto.
Section 14. AGREEMENT NOT TO BE ASSIGNED.. .'. ·. ./. . :. .
The Licensee shall not assign this Agi-eement; in whole or in part, or ahy rights herein granted, without the written
consent of the Licensor, and it is agreed that any transfer or assignment or.i'attenipted..transfe~' or aselgnment of this .
Agreement or qay of the rjg[qts herein grahted, whether voluntary, by oper~ion o£ law,. o3' othezwise, withont such consent in.,
writing, shall be absolutely void and, at the option of the Licensor, shall lerminate this Agreement.
Section 15. SUCCESSORS AND ASSIGNS. ' : :
Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors and assigns.
wlx.exb Pag~ 4 of 4 Exhibit B